Watson v. Bondurant

30 La. Ann. 1

• Court: Supreme Court of Louisiana
• Decided: January 15, 1878
• Docket: No. 6564
• Status: Published

Opinions

The opinion of the court was delivered by

Marr, J.

Walter E. Bondurant died at his domicile at Natchez, Mississippi, in June, 1874, leaving a will by which he devised his entire estate to his wife, Mrs. Ella F. Bondurant, whom he appointed sole executrix.

The will was admitted to probate in the proper court, at Natchez, on the sixteenth June; but it does not appear whether there was any property or estate in Mississippi to be administered ; nor that the executrix qualified there.

On the nineteenth Juno Mrs. Bondurant presented a petition to the parish judge of Tensas parish, Louisiana, with a copy of the will and the proceedings of the chancery court at Natchez admitting it to probate, in which it is stated that she was then residing in New Orleans ; that she was pregnant; and that deceased had left, in Tensas parish, a succession, consisting of movables and immovables, and debts. She prayed that a curator be appointed for her unborn child ; and that she be permitted to qualify as testamentary executrix. Her father was appointed and qualified as curator; and she qualified as executrix under the will.

In June, 1875, Mrs. Bondurant caused to be revived, in her name, as testamentary executrix and as natural tutrix of her posthumous son, a judgment which her husband had obtained in the district court of Tensas for a large amount against John, Albert, and Horace Bondurant; and upon this judgment she caused an alias writ of execution to be issued.

Under this execution the sheriff seized a tract of land in Tensas, in the possession of Frank Watson, who claimed it as owner. Watson enjoined; and the citation and writ of injunction were served at the domicile of Mrs. Bondurant, in New Orleans, on the thirtieth June, 1875.

In October Mrs. Bondurant filed a petition, under the act of Congress approved March 3, 1875, for the removal of this injunction suit into the Circuit Court of the United States, alleging that she was a citizen of the State of Mississippi. Her affidavit to this petition was sworn to before a justice in New Orleans on the thirteenth September.

Watson opposed the removal on the grounds : that the succession of Uondurant, which was opened in Tensas parish, was the defendant; that when Mrs. Bondurant applied for the executorship she declared herself -to be a resident of the State of Louisiana; and that she was an officer of the probate court of Tensas, and subject to its jurisdiction; that when the citation and injunction in this case were served on her she was a resident of the State, and the service was made at her domicile; and -that the pretended removal to and citizenship in Mississippi were a mere ■subterfuge and fraudulent evasion of the law, and adopted for the purpose of removing this cause into the United States Court.

On the trial of the preliminary question of removal, it was proven -that Walter E. Bondurant lived and died at Natchez; that Mrs. Bondurant, before her marriage, lived with her father in New Orleans ; that she returned to her father’s, the domicile of her origin, after the death of her husband, and remained until the birth of her child, the precise date of which is not shown. The mortuary proceedings in the succession of her husband were also offered in evidence ; and it was proven that she made affidavits, which -were filed in the cause, before justices of the peace in 'New Orleans in July and September.

The district judge declined to order the removal. A motion was made for a new trial, in support of which one of the counsel of Mrs. Bondurant filed his affidavit, in which it is stated that he had discovered since •the trial that he could prove by a member of the bar, who had testified on the trial, that Mrs. Bondurant had consulted him as to whether her residence in the State of Louisiana would forfeit her citizenship in the 'State of Mississippi; that on his advising her it would not, she remained in Louisiana, intending to retain her citizenship in the State of Missis■sippi; and that this consultation was had with reference to this very case of Watson vs. Bondurant.

The new trial was not granted; and Mrs. Bondurant filed a protest against any further proceedings in the cause. A judgment by default was taken against her, which was confirmed on proof, and the injunction perpetuated as prayed for; and she has brought the case here by .■appeal.

There is no question as to the sufficiency of the value in dispute; and the right of removal depends upon two questions only:

1. Was Mrs. Bondurant a citizen of the State of Mississippi;

2. Is this such a suit as may be removed into the Circuit Court of the United States.

First. We understand that a person who has a domicile in a State, who resides in a State, animo manencli, if he is not an unnaturalized alien, is a citizen of that State within the meaning of the Constitution of "the United States, and of the several acts of Congress conferring jurisdiction on the Federal Courts, and providing for the removal of causes from the State Courts into the Circuit Courts. The Fourteenth Amendment settles this beyond doubt. When the domicile or residence is once fixed in a State, the citizenship thus acquired is not lost by a temporary absence, animo revertendi; but it is lost, unquestionably, by prolonged absence, and other acts indicating the intention to acquire a domicile elsewhere, accompanied with actual residence at the new domicile.

Before Mrs. Bondurant’s marriage her domicile in law and in fact was at her father’s residence, in the city of New Orleans. When she married she acquired, immediately, the domicile of her husband; and she could have none other. The death of her husband relieved her of all the disabilities of marriage. She became sui juris; and had the right to reside and to acquire a domicile wherever she chose. We think she indicated her choice unmistakably, and without delay.

The will of Walter E. Bondurant is dated June 10,1874. It was filed for jjrobate on the fifteenth; admitted to probate on the sixteenth ; copy of the will and proceedings were certified on the seventeenth ; and on the nineteenth Mrs. Bondurant’s petition was presented to the parish court of Tensas, praying for letters as testamentary executrix. In this petition she describes herself as “Widow of Walter E. Bondurant, late ol Natchez, State of Mississippi, (petitioner now residing in New Orleans, in this State.)”

It was not by any error or inadvertence on the part of the attorney who drew the petition that this statement was made. By our law the testamentary executor who resides in the State is not required to give security ; but whenever the testamentary executor, that is, the executor named in the will, is domiciled out ©f the State, the judge shall only grant him letters on the execution of his bond, with a good and solvent security, for such a sum and under such conditions as are required by law from dative testamentary executors, that is, executors not named in the will but appointed by the court. Act of 1842, section three, page 300; re-enacted in 1855, No. 280, page 309; and in 1870, Revised Statutes, page 287, section 1460. The dative executor is bound to give security for one fourth over and above the amount of the inventory. R. C. C. art. 1679, Civil Code of 1825, art. 1672; R C. C. art. 1127, Civil Code of 1825, art. 1120. The inventory of the movable and immovable property amounted to $30,062, not including the large judgment in this case, which was for something over $30,000 ; so that a bond for about $38,000 ■would have been required.

In order to retain the executorship; it was necessary for Mrs. Bondurant to remain in Louisiana; because the same law requires the judge to appoint a dative executor whenever the executor named in the will is absent. Revised Statutes, page 286, section 1459. The act of 1847, Revised Statutes, page 288, section 1471, permits tutors, executors, etc., “who only wish to be absent for a time,” to retain their offices by leaving a general and special power of attorney with some person residing in the parish in which the succession is opened, or in an adjoining parish, to represent them in all their acts of administration, which power must be registered in the office of the parish recorder.

In the Succession of McDonogh, 7 An. 473, a number of citizens of Louisiana and four residents of Baltimore were named in the will as executors. The Louisiana executors and those residing in Baltimore qualified without giving security. This court held that the appointment of the non-residents without security could not be maintained ; and it was vacated.

In Yerkes vs. Brown the testator named Ms brother, who resided in Philadelphia, as his executor; and he came to New Orleans, rented an office, and qualified as a resident of Louisiana. Shortly after his appointment he returned to Philadelphia, leaving power of attorney with Hennen, who administered several years in his name. The court held that the law was imperative, requiring the executor who is not a resident of the State to give security; and that it is only when the absence is temporary that the executor can retain his office by delegating his powers to another. 10 An. 94.

Mrs. Bondurant appears in this litigation as natural tutrix of her son; and this office, like that of executor, requires residence in the State, only’' temporary absence being permitted. R. C. C. art. 314. The tutorship must continue until the majority of the child, or until after he attains his eighteenth year, when he may. be emancipated. While she is testamentary executrix she can not reside out of the State of Louisiana; but she may close her administration as executrix, and administer as natural tutrix alone. She would still be obliged to reside in the State ; and whatever her wishes and intentions might be for the future, she has accepted offices, duties, and responsibilities wholly incompatible with residence elsewhere; and which make it impossible for her to be in any sense a citizen of the State of Mississippi.

The appointment of guardians for minors belongs to the tribunals of the domicile; and if Mrs. Bondurant had continued after the death of her husband to reside in Mississippi, to have a domicile there, that would have been the domicile of her child; and she would have been bound to apply for guardianship to the proper court of that State. She assumes an office unknown to the law of Mississippi, which is peculiar to the law of Louisiana, that of natural tutrix, which is the repeated assumption on her part of residence, domicile in the State of Louisiana; and this office enables her to administer the estate of her child without giving security, which is required by law of guardians in the other States generally.

If the mere intention to retain a domicile in a State different from that in which a person actually resides would suffice in any case to preserve citizenship, it certainly can not have that effect when the person accepts offices and trusts at the place of residence which are not granted to citizens of other States except on onerous conditions. Mrs. Bondurant could not have qualified as testamentary executrix without giving security, except by satisfying the judge that she was a resident of the State of Lousiana. We will not do her the injustice to suppose she intended to obtain all the privileges and advantages of an actual residence in Louisiana by an untrue statement in a solemn judicial proceeding. A mere visit to' her father, with the intention to return to Natchez in a short time, would not have authorized her to claim a residence in Louisiana for the purpose of obtaining letters as executrix without giving security. She ceased to be a resident of Mississippi immediately after the death of her husband. She had no means of preserving a domicile or citizenship in Mississippi except by residence; and it is not shown that she has spent a day at Natchez since she described herself in her petition to the parish-judge as “ now residing in New Orleans.” She has concluded herself on this point by her public acts and declarations, by her continued residence in Louisiana, not less than by her acceptance of the executorship and tutorship. ' If Mrs. Bondurant is a citizen of Mississippi she is not legally the testamentary tutrix of her husband’s will, and the parish court of Tensas would be bound to vacate the appointment or to require her to give security; nor would that court have had the power to recognize her as natural tutrix, since the jurisdiction to appoint a guardian is vested in the proper court of the domicile. The consequence would follow that she is not legally qualified to enforce the rights of the succession in these representative capacities.

Our conclusion is, that Mrs. Bondurant can not be a citizen of the State of Mississippi for the purpose of giving jurisdiction to the Circuit Court of the United States, nor within the meaning and intent of the’ laws and Constitution of the United States, and of the State of Louisiana, while she is exercising offices and trusts in Louisiana which require actual residence in the State.

Second. We entertain no doubt that the act of March 3,1875, under which the removal was demanded in this case, was intended to provide for and regulate the entire subject of the removal of causes from the State courts into the Circuit Courts. The first section of the act enlarges- and extends the original jurisdiction of the Circuit Courts up to the full limits of the judicial power granted by the Constitution of the United States. This jurisdiction is declared to be concurrent with that of the State courts; and the jurisdiction exclusive of that of the State courts is limited to crimes and offenses cognizable under the authority of the United States, and appeals from the District Court.

The second section of the act relates exclusively to those cases which .may be removed from the State courts into the Circuit Courts ; and it is in great part a mere repetition of that portion of the first section which relates to the original jurisdiction concurrent with that of the State courts. There is no doubt that any suit of a civil nature, at law or in equity, falling within the original cognizance of the Circuit Courts under this act, may be removed from a State court on the terms and conditions prescribed in this act. Without intending so to decide now, because we do not find it necessary, we incline to the opinion that no suit can be removed under this act from a State court into the Circuit Court which could not have been brought in the Circuit Court by original process.

This case differs from that of Goodrich vs. Hunton, just decided, in this respect, that in that case the litigation was between the same persons who were parties to the original suit,-while in this case Watson was a stranger to the original suit. It differs also from Turnbull’s case, 16 Wallace, in that in this case there was a petition filed, and citation and a writ of injunction were issued and regularly served on the defendant. But it is precisely like Turnbull’s case in these essentials:

1. That under execution on a judgment in a suit to which Watson was not a party his property was seized and was about to be sold;

2. That he sought relief in the only court in the State which had jurisdiction under the law of the State ;

8. That he proceeded in the form prescribed by the law of the State.

It will be observed that in the Bank vs. Turnbull the removal was under the act of March 2, 1867, which gives the right of removal to the citizen of a State other than that in which the suit is brought, whether he be plaintiff or defendant in “a suit,” any suit, involving the requisite amount, in a State court, in which there is a controversy between him and a citizen of the State in which the suit is brought; and the attention of the court was directed to the fact that the proceeding under review was not a suit, but was in the nature of a motion. The court declined to consider that question, because, “ conceding it to be a suit, .and not essentially a motion, wo think it was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation.” There is no escape from the conclusion, if the decision of the court was correct in this case, that where a third person, not a party to a judgment, intervenes to protect his property, seized under execution on that judgment in the court from which the process issued, that court alone has jurisdiction of the controversy; and that this proceeding, “ conceding it to be a suit,” is not removable into the Circuit Court ratione materice.

This decision was under the act of 1867, but the language of that act in describing what may be removed — “ a suit ” — has a much broader meaning and extent than the words used in the second section of the act of 1875, in describing what may be removed — “ any suit of a. civil nature at law on in equity.” If there can be a suit in a State court in which there is a controversy between a citizen of that State and a citizen of another State, not of a civil nature, or ah anomalous nondescript, not at law or in equity, it would seem, ex vi termini, that it must come within the act of 1867, and be removable under that act, all the other requisites concurring; and it is equally clear that such a suit would not fall within the restricted terms of the act of 1875, and would not be removable under that act.

If, therefore, the proceeding on the part of Turnbull & Co., by whatever name it may be called, was not removable under the act of 1867, as the court expressly decided it was not, it is because a suit means an original suit, hot an auxiliary, dependent, supplementary proceeding, by which a third person interposes to prevent the sale of his property, seized under execution, in satisfaction of a judgment in the original suit to which he was a stranger. If such a proceeding was not a suit within the meaning of the act of 1867, and therefore was not removable, there is no logic by which it can be shown that the proceeding on the part of Watson in this case is any suit of a civil nature, at law or in equity, within the terms of the act of 1875, and that it is, therefore, removable under that act.

There is another reason in this case, which did not exist in Turnbull’s case, and which we think conclusive. The whole object of this proceeding is to prevent the sale of Watson’s property, seized under execution, •and to do this a writ of injunction, pendente lite, to be made perpetual toy final decree, was indispensable. Without the power to stay by injunction proceedings in a court of the State, no tribunal could take cognizance of this proceeding. Under the act of Congress of March, 1798, Revised Statutes, section 720, the Circuit Court could not take jurisdiction in such a case by removal from a State court, as was expressly decided in Diggs & Keith vs. Wolcott, 4 Cranch., nor by original process, as was 'expressly decided in Haines vs. Carpenter, 1 Otto ; and as we have just had occasion to say in Goodrich vs. Hunton, this prohibitory law.places such a proceeding as this beyond the power and jurisdiction of the Circuit Courts.

The reasoning and authorities cited in Goodrich vs. Hunton are equally applicable to this case, and are referred to and adopted here without being repeated. We conclude that the District Court properly refused to grant the order of removal, because of the citizenship of the parties, and because this proceeding is not such a suit as may be removed from a State court into the Circuit Court.